One of the most miraculous things about American society is how good we are about communicating what we want in the language of law. 'There oughta be a law..' is a popular phrase for good reason. It happens. We know how to make it happen, it's part of the American legacy. It's also something of a problem.
Volokh is sustaining a discussion which seems to me to be remarkably petty about the merits of laws against smoking on public streets. If you look closely, there's something to see, but it ain't much. But if you step back, there's something to be said about the Paradox of Self-Amendment, and how we have twisted our way around into this odd predicament.
Back when I was more of an intellectual stripling than I am today, my first attempts at being 'deep' involved me in a discussion with Peter Suber, more in my mind than in reality because there was basically one letter each to and fro. He was of the opinion at the time that there was no revolution latent in the principles of client-server computing. He was wrong in principle but right if he was talking about timing. Basically I make my living working in the Business Intelligence field, part of which is a technical enabler of that alter we pay obeisance to: Corporate Governance. Cluetrain Manifestos notwithstanding, there has been a real evolution in the way corporations organize their information. One could argue, revolution, considering that not 20 years ago, the very idea that a business manager would even want to use email, much less use it to improve his business was almost unthinkable. Still, for a newb like me to tangle with man like Suber was and still is hubris.
The Paradox of Self-Amendment is basically the notion that you can set up a system with a consistent set of rules, but if some of those rules allow you to change other of those rules, it is possible to manipulate the system to contradict itself. This is the danger with all 'living documents' and so it is with a 'Living Constitution'. I understood this early on, and it might be one of those things that made me suceptible to arguments about Original Intent. I think that I have become a Strict Contructionist for political reasons over time, but I've known the dangers we talk about.
One of the basic conclusions I came to with respect to this has been a principle in my anti-racism. I have always insisted on a race-neutral, actually race-blind Constitution and a race-conscious politics. When I assert that 'colorblindness is the moral equivalent of racism' I have always meant it about politics and policy, but never about rights.
Anyway, in this vein, what piques my interest today is how the American public has come full circle on the morality and social meaning of smoking. I grew up in an America that defended the very concept embodied by the Marlboro Man. The Marlboro Man has been shot and hung in effigy by a crowd of light loafered lefties, who would like nothing better than for us to believe his silent vigil was spent in contemplation of a male lover. Not all change is good.
Since we are a democracy of the people, we get to stand up and make pronouncements about what we think. Since we're bourgie, risk-averse and have tendencies towards scientific animism, we worry about a lack of Progress. And so it becomes inevitable that we try to legislate our way into a safer, surer future. And if the people who just don't get it are left behind, sobeit. We all have our obligations to the law and my aren't we fortunate to have insightful people like Juan Cole and Kos doing our forward thinking for us? Even the cats at Volokh get swept into the mix. Then again, they are lawyers. Their job is to alternative craft or navigate a thicket of laws, which will undoubtedly soon cover every aspect of human behavior, morality, ethics, thought, emotion and feeling.
Fortunately there's war.
And so my liberal detractors may take some heart today that I can consider myself to be something of a warmonger. I am slightly ashamed to say that I am slightly attracted to the clarity and cleanliness of the destruction of civilization. I think it was Patton who said, "Compared to war all other forms of human endeavor shrink to insignificance." And after the chaos of battle, everything gets attributed to war. If there will be men who will fight war, then they will not be men who concern themselves with whether or not other men smoke on sidewalks. Do we need a purge? Is there a cancer of propriety growing within our society? Have we lost our sense of what humans are capable of, is that why so many Americans are astonished by a half-million Mojados showing up to assemble in peace? Is that the greatest sense of drama we can imagine? I should talk, lamenting the mincification of a commercial icon.
I think we are missing something. I think our kids have worn bicycle helmets too long. I think we have too many people who take drugs, play guitar and say the world is full of shit. I think we spend entirely too much time developing sensitivities and that the most sensitive of us get too many opportunities to make laws and policies that compress the zest and violent energy out of American life.
I will raise my boy to be tough and rugged, and raise my daughters to love that kind of man. And if we never need his courage, then we will be fortunate. But better to have it and never need it than not to respect it and be incapable of summoning it.
If there is a greater shame than to die of lung cancer, it is to have died of lung cancer without having had a dogface doughboy's reasons for smoking.
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